Soares, judge face off over DA's refusal to act

To prosecute Occupy Albany protestors or not is the issue

Jordan Carle, Times Union

By Jordan Carleo-Evangelist

Updated 7:47 am, Saturday, June 29, 2013

Attorney Mark Mishler argues for his clients, members of Occupy Albany, in the case of Soares v Carter. Albany County District Attorney David Soares and Albany City Judge Will Carter were in state Supreme Court to square off over a lawsuit Soares filed to block Carter from forcing him to call witnesses at a hearing for people arrested after an Occupy Albany protest. (Skip Dickstein / Times Union)

Attorney Mark Mishler argues for his clients, members of Occupy...

Attorney Mark Mishler presents his argument to Judge Richard Platkin in agreement with District Attorney David Soares to not prosecute his Occupy Albany clients Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

Attorney Mark Mishler presents his argument to Judge Richard...

Attorney James Knox, representing Judge Will Carter, presents his argument to Judge Richard Platkin in the case of Judge Will Carter v. DA David Soares Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

Attorney James Knox, representing Judge Will Carter, presents his...

Attorney Christopher Horn, representing Albany County DA David Soares, listens as presentations are made in the case of Judge Will Carter v. DA David Soares Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

Attorney Christopher Horn, representing Albany County DA David...

Attorney Christopher Horn, representing Albany County DA David Soares, presents his argument to Judge Richard Platkin in the case of Judge Will Carter v. DA David Soares Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

Attorney Christopher Horn, representing Albany County DA David...

Judge Richard Platkin listens to presentations by attorneys in the case of Judge Will Carter v. DA David Soares Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

Judge Richard Platkin listens to presentations by attorneys in the...

Daniel Morrissey listens to presentations in the case of Judge Will Carter v. DA David Soares Friday morning, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. Morrissey was arrested for disorderly conduct in the Occupy Albany arrests and is one of the four defendants that are directly involved in the outcome of this case. ( Skip Dickstein/Times Union )

Daniel Morrissey listens to presentations in the case of Judge Will...

Attorney Christopher Horn, representing Albany County DA David Soares, stands at the podium as he presents his argument to Judge Richard Platkin, left, in the case of Judge Will Carter v. DA David Soares Friday, June 28, 2013, at the Albany County Courthouse in Albany, N.Y. ( Skip Dickstein/Times Union )

A lawyer for Albany County District Attorney David Soares told a judge Friday that if voters don't like the way the three-term Democrat wields his prosecutorial discretion, they can vote him out office.

The argument emerged during a nearly 90-minute hearing pitting Soares against City Court Judge William Carter, who has threatened to hold Soares' office in contempt of court for refusing to call witnesses against four Occupy Albany protesters whom Soares says he won't prosecute.

"It's not something we think the people of Albany want us to do," Soares' special counsel, Christopher Horn, told acting state Supreme Court Justice Richard Platkin. "We have the discretion how to use our resources, and if the citizenry of Albany County decides they don't like how we're using our resources, they will vote us out."

While the two cases before Platkin stem from the Occupy movement, with which Soares publicly expressed solidarity in late 2011, the First Amendment questions that underpinned earlier cases surrounding the protesters' rights are not in dispute.

Instead, the dispute amounts to a hyper-technical legal turf war. Carter has accused Soares' office of ignoring state law by abandoning the cases without a valid reason, and Soares has countered that Carter is flouting the separation of powers by trying to dictate how district attorneys do their jobs.

Soares sued Carter in a bid to stop the two-term judge, also a Democrat, from compelling his office to move forward with the cases. The judge denied the defendants' motions to dismiss the charges and then threatened to hold Chief Assistant District Attorney David Rossi in contempt last month when Rossi refused to call witnesses at a pre-trial hearing — a passive stance prosecutors hoped would end the cases.

The four defendants — Colin Donnaruma of Voorheesville, Daniel Morrissey and Eric Cantine of Albany, and Timothy Holmes of West Chazy — were charged with disorderly conduct, a violation, after a June 13, 2012, march down Lark Street. Donnaruma was also charged with misdemeanor resisting arrest.

After reviewing the circumstances, Soares' office told Carter it would not prosecute the defendants, mirroring the DA's handling of scores of other Occupy protesters whose alleged crimes did not damage property or cause injuries. Those charges were dismissed by another city judge, Thomas Keefe.

The second case before Platkin Friday was filed by the defendants themselves, arguing that Carter has no choice but to dismiss the charges against them because Soares' refusal to move forward with the cases has violated their right to speedy trial.

Carter's lawyer, James Knox, argued that state law does not grant prosecutors the power to simply walk away from cases without citing one of the legally established grounds.

Letting them do so, Knox argued, would grant prosecutors "extraordinary power over the outcome of criminal cases that I think exceeds what the Constitution and criminal procedure law has granted."

It was that kind of unfettered discretion that the Legislature was trying to stop when it abolished the concept of nolle prosequi, a Latin term for failure to prosecute, in the 19th century, Knox said.

"It opens an avenue that's ripe for abuse," he said.

But Mark Mishler, a lawyer for the protesters, said a judge has no business probing a prosecutor's motivations for not pursuing a case.

"That is exactly and precisely what criminal court is prohibited from doing," Mishler said.

Knox disputed that Carter ever formally ordered Rossi to call a witness, but Horn questioned what other reason the judge would have for threatening contempt. By appearing in court and declining to offer evidence, Horn contended, the prosecution had met its requirement and the cases should have been dismissed.

"By any ordinary, logical and lawful expectation, that should have been the end of the story," Mishler said.

Neither Soares nor Carter attended the proceeding, but two of Soares' top aides — Rossi and Christian D'Alessandro, his chief investigator and director of operations — were in the audience. More than 30 Occupy Albany supporters — including Donnaruma and Morrisey — were also in court.

Platkin said he plans to issue a joint decision for the two cases in the next several weeks.